Mr.Sankar N.Sinha, Adv. v. MEENAKSHI & ORS. .....

1. The present appeal is filed seeking to impugn the Award dated 7.10.2014. The Claim Petition was filed on account of vital injuries suffered by late Shri Rajesh Kumar in a road traffic accident on 21.1.2014. The deceased on the said date at 9.30 PM was taking his motorcycle from the parking of Lajpat Rai Market in front of Jain Mandir. When he took a turn towards ISBT after red light a DTC bus driven by respondent No.2 came at a very high speed and hit the motorcycle. As a result the deceased fell down on the road and the tyre of the bus crushed his head and he died on the spot.

2. Based on the evidence on record the Tribunal concluded that the accident took place due to the rash and negligent driving of respondent No.2.

3. On compensation the Tribunal awarded a total compensation of 2014:DHC:6294 Rs.30,01,456/-. Loss of dependency of Rs.27,66,456/- was awarded. Rs.25,000/- for funeral charges, Rs.1,00,000/- towards loss of consortium, Rs.1,00,000/- towards loss of care and guidance for minor children and Rs.10,000/- for loss of estate.

4. The Tribunal rejected the contention of the appellant company that the deceased cannot get compensation as he is covered under The Employees’ State Insurance Act, 1948 (hereinafter referred to as the ESI Act).

5. Learned counsel appearing for the appellants have relied upon AIR 2009 SC 2599, National Insurance Company Limited vs.Hamida Khatoon to contend that the present appeal is barred in view of the said judgment read with section 53 of the ESI Act and the appropriate forum for adjudication of the claim would be the ESI Act.

6. Section 53 of the ESI Act reads as follows:- “[53. Bar against receiving or recovery of compensation or damages under any other law-An insured person or his dependents shall not be entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the Workmen’s Compensation Act, 1923 (8 of 1923), or any other law for the time being in force or otherwise, in respect of an employment injury sustained by the insured person as an employee under this Act.]”

7. Hence, section 53 is applicable when the workman suffers an employment injury. An employment injury is defined under section 2(8) of the Act which reads as follows:- [2(8)“”employment injury””means a personal injury to an employee caused by accident or an occupational disease arising out of and in the course of his employment, being an insurable employment, whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of India;]

8. Para 12 of National Insurance Company Limited vs.Hamida Khatoon (supra) reads as under:-

9. A reading of section 53 and section 2(8) of the above judgment shows that for application of section 53 the employee has to suffer an employment injury.

10. In the present case there is no averment even in the appeal or any averment made before the Tribunal to show that the deceased had suffered an employment injury. Clearly the provisions of ESI Act would not be applicable to the facts and circumstances of the present case.

11. This Court in Oriental Insurance Limited vs. Sanjay Kumar Singh, MANU/DE/2767/2013 in paragraph 7 held as follows:- “In view of the discussion in Para above, it is clear that the present case comes under the Motor Vehicles Act, 1988. The respondent/injured had not received injuries on account of his employment. In other way, the injuries sustained by him cannot be termed as 'employment injury'. Bar of Section 53 ESI Act applies only in respect of employment injuries sustained by the insured person as an employee under the ESI Act.”

12. Hence, this Court has already held that where the deceased has not suffered an employment injury section 53 of the ESI Act would not come into play.

13. Even otherwise I cannot help noticing that in National Insurance Company vs. Hamida Khatoon (supra) the Supreme Court while allowing the appeal had held that the entitlement of the employee concerned in those facts would be done by the M.V. Act by taking note of this fact.

14. Other than this there were no submissions made regarding any other aspect. I have seen the judgment of the Tribunal and find it in order.